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December 13, 2018

The holidays are a time for deals — rebates, discounts and special financing offers. Especially prevalent are automobile advertisements with images of big red bows atop shiny new cars and exhilarated families dashing out into the snow to unpack presents out of the back. Well, the regulators are watching those advertisements too. For the fourth time in a month, the CFPB is warning consumers, especially servicemembers, about the potential pitfalls of the car buying process and understanding exactly what they are buying and what they are financing. The FTC is joining in to help, with its own resources as well.

Add-On Products are an area of special concern and focus for the CFPB. The CFPB recommends that buyers “be prepared to say ‘No, thank you’ if [they’re] offered add-ons [they] don’t want or need.” But the CFPB also adds a warning that customers should be sure to review their contracts carefully to make sure the items declined are not included. Dealer sales practices vary on these types of products, and the CFPB appears to be suggesting not so subtly that buyer had better beware.

Value & Actual Costs/ Financing. Products and services the regulators highlight include: (a) guaranteed auto protection (GAP), (b) tire, dent, paint and fabric protection packages, (c) extended warranties, and (d) service contracts. These additional products and services can be valuable to consumers depending on how long they intend to keep the car, how they want to maintain it, and their own economic circumstances and budget cashflow. The CFPB and FTC focus signals that in marketing these products and services, institutions and their business partners must be direct and forthright about the product, its features, its limitations, and the price. High pressure sales tactics or aggressive marketing may result in customer complaints, regulatory inquiries, and litigation and reputation risk.

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November 28, 2018

On November 21, 2018, the Federal Reserve, Office of Comptroller of the Currency and the FDIC jointly published a notice of proposed rulemaking (the “NPR”) to provide an alternative capital system for qualifying banking organizations. Specifically, the regulators have proposed a new, alternative, simplified capital regime for qualifying institutions that will deem an institution to be well-capitalized so long as it maintains a leverage ratio of at least 9% and adequately capitalized so long as it maintains a leverage ratio of at least 7.5%.

The NPR seeks to implement the community bank leverage ratio (CBLR) mandated by Section 201 of the Economic Growth, Regulatory Relief and Consumer Protection Act (“EGRRCPA”). EGRRCPA requires the regulatory agencies to develop a CBLR of not less than 8 percent and not more than 10 percent for qualifying community banking organizations, and provides that organizations that meet such CBLR will deemed well capitalized for all purposes. EGRRCPA further provides that a qualifying community banking organization to be a depository institution or depository institution holding company with total consolidated assets of less than $10 billion.

Summary of the NPR

The NPR establishes five criteria for an depository institution or holding company to be deemed a Qualifying Community Banking Organization:

Total consolidated assets of less than $10 billion;

Total off-balance sheet exposures of 25% or less of total consolidated assets;

Total trading assets and trading liabilities of 5% or less of total consolidated assets;

MSAs of 25% or less of CBLR tangible equity; and

Temporary difference DTAs of 25% or less of CBLR tangible equity.

Under the NPR, the numerator of the CBLR would be CBLR tangible equity. CBLR tangible equity would be equal to total equity capital, determined in accordance with Call Report or Form Y-9C instructions, prior to including any minority interests, less (i) accumulated other comprehensive income (AOCI), (ii) all intangible assets (other than MSAs) including goodwill and core deposit intangibles, and (iii) DTA’s arising from net operating loss and tax credit carryforwards.

The CBLR denominator would be average total consolidated assets, calculated in accordance with Call Report or Form Y-9C instructions, less the items deducted from the CBLR numerator, except AOCI. The NPR notes that the calculation is similar to the one used in determining the denominator of the tier 1 leverage ratio.

Under the NPR, a Qualifying Community Banking Organization may elect to use the CBLR framework at any time, so long as it has a CBLR greater than 9% at the time of the election. Under the CBLR framework, the Qualifying Community Banking Organization will be considered well capitalized so long as it has a CBLR greater than 9%. A qualifying depository institution that previously elected to use the CBLR framework but has fallen below 9% will not be required to convert back to the regular capital system. Instead, the following CBLR leves will serve as proxies for the PCA categories:

Adequately Capitalized – CBLR of 7.5% or greater;

Undercapitalized – CBLR of less than 7.5%; and

Significantly Undercapitalized – CBLR of less than 6%.

The framework for Critically Undercapitalized would remain unchanged at a ratio of tangible equity to total assets of 2% or below. Any institution that would be deemed Significantly Undercapitalized under the CBLR framework would be required to promptly provide its appropriate regulators sufficient information to calculate the PCA tangible equity ratio.

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October 29, 2018

A little over 10 years ago, at the wise encouragement of Walt Moeling, we launched this blog. From day one, the response from clients, referral sources, regulators and competitors has been amazing.

All in, we’ve published over 1,000 blog posts, authored by almost 100 different attorneys with the firm. From BankPogo.com to BankBryanCave.com to BankBCLP.com, the site has evolved with the evolution of the firm, but has always been focused on providing usable advice to financial institutions across the country.

I’m thrilled with what we were able to build, but also refuse to just rest on our past accomplishments. We are always on the lookout for areas of interest to our client, where we can partner with the financial institution industry to create value for all. I think we all hope that such assistance will never again involve assistance with government investments in our depository institutions, but if it does, we look forward to building upon the expertise gained in the great recession.

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October 15, 2018

Ten years ago, on October 13, 2008, the U.S. Treasury Secretary Henry Paulson effectively locked the CEO’s of the nine largest banks in the United States in a conference room and demanded that they accept an investment from the U.S. Government. Although we had front row seats for much of the activity over the ensuing years, reading the New York Times summary of that meeting from the following day still provides a sense of just how shocking all of this was.

While the U.S. Treasury simultaneously announced its intention to also provide the possibility of investments in other banks, it was a long wait for details, particularly for privately held and Subchapter S Banks. Ultimately, over the course of the next 15 months, the U.S. Treasury invested $199 billion in 707 financial institutions across 48 states. As of October 1, 2018, the Treasury has received over $226 billion back in dividends, repayments, auction proceeds, and warrant repurchases.

Of the $199 billion in investments in 707 institutions, as of October 1, 2018, only three investments, reflecting $24 million in original investments, remain in Treasury’s portfolio. 264 institutions repaid in full and another 165 refinanced into other government programs. (The SBLF and CDFI funds were similar to the TARP CPP program, but were ultimately done under different congressional mandates. While not necessarily representative of an ultimate cash return on the Treasury’s investment, each of these funds has also provided a strong return to the Treasury.)

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October 11, 2018

The Eleventh Circuit recently rejected a defense to foreclosure based on a federal statute governing insurance of reverse mortgages by the Department of Housing and Urban Development (“HUD”).

HUD administers a mortgage-insurance program designed to induce lenders to offer reverse mortgage loans to elderly homeowners. If the loan meets certain conditions, HUD insures against any outstanding balance owed on the loan. One condition, contained in 12 U.S.C. § 1715z-20(j), provides:

The Secretary may not insure a home equity conversion mortgage under this section unless such mortgage provides that the homeowner’s obligation to satisfy the loan obligation is deferred until the homeowner’s death, the sale of the home, or the occurrence of other events specified in regulations of the Secretary. For purposes of this subsection, the term “homeowner” includes the spouse of a homeowner.

Borrowers and their estates have argued the statute prevents lenders from seeking repayment of a loan subject to a reverse mortgage until either the sale of the home, or the death of both the borrower and his or her non-borrowing spouse – even if the loan documents provide to the contrary. The Court in Estate of Caldwell Jones, Jr. v. Live Well Financial, Inc., No. 1:17-cv-03105-TWT (decided Sept. 5, 2018) rejected this argument.

In Estate of Caldwell Jones, Jr., former NBA star, Caldwell Jones, Jr., obtained a reverse mortgage secured by his home. Jones lived in the home with his wife and his minor daughter, until he passed away in 2014. Jones’s wife was not a co-borrower.

October 3, 2018

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October 3, 2018

10 Years ago today, on October 3, 2008, President George W. Bush signed the Emergency Economic Stabilization Act of 2008, creating the Troubled Asset Relief Program (TARP) and authorizing the expenditure of up to $700 billion. Pursuant to its obligations under TARP, the Treasury still publishes regular reports on its investments and activities thereunder. The Treasury has also published a TARP Tracker that provides an interactive and chronological history of TARP.

The various components of TARP were not developed (and then further streamlined) over the next year or so, but the 10-year anniversary of the overall program seems like an appropriate time to look at the overall results of the program. (In fact, the very thought that TARP would become primarily a program of investments in banks 10 years ago would probably have been laughed at… everyone felt it was going to focus on purchasing toxic assets.) Over the next several months, we’ll periodically look back on the developments (with the benefit of hindsight), including looking at the launch of this blog.

While $700 billion was initially authorized, the authorization was subsequently reduced to $450 billion. Based on the latest Monthly Update published by Treasury, just over $440 billion was disbursed and only $70 million remains outstanding today. Overall, the U.S. Treasury has received just over $443 billion in cash back as a result of its expenditures under TARP.

While overall TARP was actually profitable for the U.S. Treasury, when you break down TARP into categories of programs, one can see that the bank investment component (which is generally thought to be the most controversial aspect) was actually the most profitable.

Looking specifically at the various bank investment programs, the government invested a total of $245.1 billion. Of that investment, it did recognize write-offs and realized losses of over $5.2 billion. However, it also recognized over $35.7 billion in income (primarily dividends and profits on sold investments), resulting in a total cash return of $275.5 billion on its $245.1 billion investment.

On substantive issues, we primarily focused on reforms enacted under The Economic Growth, Regulatory Relief, and Consumer Protection Act, or EGRRCPA, but also touched on the modernization of the Georgia banking code. Specific topics discussed include:

the expansion of the Small Bank Holding Company Policy Statement;

the relaxation of the reciprocal brokered deposit rules;

Volcker Rule relief;

the upcoming regulatory off-ramp (or at least rest stop, if not fully an off-ramp); and

the increased threshold for the 18-month examination cycle and short-form call reports.

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September 24, 2018

Twenty venture capitalists gathered in Silicon Valley last week to discuss the impact of blockchain technology, including digital currency, on financial services and venture capital. The 20 VCs represent an equal number of funds, which invest–or are looking for investment opportunities–all over the world, including the third world. They represented a diverse group of perspectives, with some having regulatory experience, some having experience with conventional payment mechanisms and some with innovative mechanisms such as PayPal. Even their disagreements were instructive of the uncertain future of blockchain technology and its various potential applications.

The consensus is that digital currency is entering a nuclear winter. A majority of Initial Coin Offerings made in 2017–perhaps as much as 75%–turned out to be fraudulent and have no value today. Not coincidentally, the vast majority of Initial Coin Offerings originated in Eastern European countries that are home to spam and bot farms…and where there is little, if any, regulatory oversight.

To the extent bitcoins may become a viable, commercial technology for B2B transactions, it is likely to occur in a technology hub in the U.S. or Europe. Those hubs have the talent, the infrastructure and the robust regulatory structures that can be adapted to ICOs and create the trust necessary to make digital currency a positive, viable alternative to government currencies. In fact, the centralization of technology talent in the U.S. is depriving the rest of the world of talent.

The attempts of island states, like Bermuda, Malta, Cyprus, the Isle of Mann, and even Singapore to draft regulations that facilitate the creation of bitcoin issuers on their soil is unlikely to have a significant impact. Nobody who is experienced and seriously intends to build a global digital technology company and change the financial services industry on a global scale will think one can create the necessary large organization on these islands. These islands do not have an ecosystem of sophisticated VCs and do not have a critical mass of talented engineers. The island states are going for broke because they have so little to lose. When and if the technology matures, U.S. companies will step in and crush competitors based in these islands.

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September 20, 2018

With both college and professional (not to mention fantasy) football in full swing, we find many conversations with clients drifting to topics from thegridiron at this time of year. Given that many of us are devoting a significant amount of our personal time to following our favorite teams, many times business points are best illustrated at this time of year by using football analogies.

Certain sports agents have posited that the highest achieving football coaches could easily run Fortune 500 companies but instead chose to coach football for a living. While that point is debatable, we can certainly draw from the talking points of today’s best coaches in setting a framework for approaching a merger transaction. While we can’t deliver Nick Saban, Bill Belichick, or Kirby Smart to your boardroom, use these sound bites to your advantage in setting the tone for how your board addresses an M&A transaction.

Trust the process. “The Process” has become a hallmark of the University of Alabama’s championship dynasty. Coach Saban focuses on the individual elements that yield the best results by the end of the season. Similarly, a well-planned process can be trusted to yield the best long-term results. This simple point is among the easiest for boards to miss. We are often concerned when clients engage in “opportunistic” M&A activity. Instead, we prefer to see a carefully planned process that includes the following fundamental elements:
* Parameters around the profile that potential partners should have, including market presence, lines of business, and size;
* Clearly defined financial goals and walkaway points; i.e., those metrics beyond which no deal can be justified;
* For sellers, the forms of consideration that will be acceptable (i.e., publicly-traded stock, privately-held stock, or cash); and
* Selection of qualified advisors.

Self-scout. Great football teams have an honest self-awareness of their strengths and weaknesses and grasp them on a deeper level than their opponents. Buyers and sellers should also have a frank assessment of their shortcomings. In planning for the M&A process, those weaknesses should be addressed in advance to the extent possible. To the extent they cannot be fixed in advance of embarking on an M&A process, parties should provide a transparent assessment of their weaknesses to potential partners. Doing so enhances credibility and builds trust in the other facets of due diligence.

Know the tendencies of your opponent. On the other side of self-scouting is a great team’s ability to understand and address the weaknesses of its opponents. While we never advise clients to think of M&A partners as adversaries, advance due diligence of a potential partner to identify their needs can certainly help lead to a successful transaction. At its core, a good M&A transaction is about giving a potential partner something it does not have and cannot build for itself. To the extent that parties can identify the needs of potential partners in advance of their initial conversations, they can speak directly to those needs at the outset, thus positioning themselves as an optimal partner in a crowded M&A field.

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September 13, 2018

Exercising “exceptive” relief authority, FinCEN has extended permanent relief from the beneficial ownership requirements of its new Customer Due Diligence (CDD) rule to existing autorenewing CDs and safe deposit boxes, as well as existing autorenewing commercial lines of credit and credit cards that do not require underwriting review and approval. FinCEN reasoned that these products pose such a low risk for money laundering and terrorist financing activity that the benefits of requiring the collection of this information does not outweigh the impacts of compliance on financial institutions and their customers. Specifically, institutions need not treat rollovers or renewals of such products as “new accounts” requiring the collection of the beneficial ownership elements of the CDD rule, whether or not the initial accounts were established prior to the rule’s May 11, 2018 effective date.

FinCEN previously issued temporary relief to autorenewing CDs and loan products established prior to May 11, 2018, and in a second release extended this relief through September 9, 2018. The new release both extends this treatment indefinitely and expands it to include certain safe deposit box rentals, such that the exception applies now to any of the following occurring on or after May 11, 2018:

A rollover of a CD, defined as a deposit account that has a specified maturity date, prior to which funds cannot be withdrawn without the imposition of a penalty, and which does not permit the customer to add funds;

A renewal, modification, or extension of a loan (e.g., setting a later payoff date) that does not require underwriting review and approval;

A renewal, modification, or extension of a commercial line of credit or credit card account (e.g., setting a later payoff date) that does not require underwriting review and approval; and

A renewal of a safe deposit box rental (e.g., upon the automatic deduction of the rental fee as agreed-upon between a bank and its customer).

FinCEN is careful in this September 7, 2018, release to explain that it does not relieve institutions of the obligation to collect and verify the identity of beneficial owners of legal entity customers where the initial account opening of such accounts occurs on or after May 11, 2018. It does mean, however, that institutions need not collect beneficial ownership information for certain older accounts of the types described above (those opened prior to May 11, 2018) solely because they are rolled over or renewed.

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Exercising “exceptive” relief authority, FinCEN has extended permanent relief from the beneficial ownership requirements of its new Customer Due Diligence (CDD) rule to existing autorenewing CDs and safe deposit boxes, as well as existing autorenewing commercial lines of credit and credit cards that do not require underwriting review and approval. FinCEN reasoned that these products pose such a low risk for money laundering and terrorist financing activity that the benefits of requiring the collection of this information does not outweigh the impacts of compliance on financial institutions and their customers. Specifically, institutions need not treat rollovers or renewals of such products as “new accounts” requiring the collection of the beneficial ownership elements of the CDD rule, whether or not the initial accounts were established prior to the rule’s May 11, 2018 effective date.

FinCEN previously issued temporary relief to autorenewing CDs and loan products established prior to May 11, 2018, and in a second release extended this relief through September 9, 2018. The new release both extends this treatment indefinitely and expands it to include certain safe deposit box rentals, such that the exception applies now to any of the following occurring on or after May 11, 2018:

A rollover of a CD, defined as a deposit account that has a specified maturity date, prior to which funds cannot be withdrawn without the imposition of a penalty, and which does not permit the customer to add funds;

A renewal, modification, or extension of a loan (e.g., setting a later payoff date) that does not require underwriting review and approval;

A renewal, modification, or extension of a commercial line of credit or credit card account (e.g., setting a later payoff date) that does not require underwriting review and approval; and

A renewal of a safe deposit box rental (e.g., upon the automatic deduction of the rental fee as agreed-upon between a bank and its customer).

FinCEN is careful in this September 7, 2018, release to explain that it does not relieve institutions of the obligation to collect and verify the identity of beneficial owners of legal entity customers where the initial account opening of such accounts occurs on or after May 11, 2018. It does mean, however, that institutions need not collect beneficial ownership information for certain older accounts of the types described above (those opened prior to May 11, 2018) solely because they are rolled over or renewed.

Some common scenarios to consider in the wake of this relief:

Autorenewing CDs commonly feature “grace periods” (e.g., 10 days after maturity) during which depositors may withdraw funds without penalty. This period is expressly permitted by Regulation D for a deposit which still may be classified as a “time deposit.” If a customer established such a CD prior to May 11, 2018 and attempts to exercise a withdrawal during a grace period thereafter, can the institution permit this without the collection of beneficial ownership information? The technical answer to this question depends on what the purpose of the withdrawal is – if the funds are transferred outside the institution because the customer has instructed the institution to close the account, there is probably no obligation to collect beneficial ownership information since no “new account” has been established there. If, however, the customer wants to transfer funds into a money market account or CD of a different nature at the original institution, then new account obligations apply.

Many commercial depositors that maintain safe deposit boxes with an institution will maintain other accounts with that institution. In light of this new authority, if all of these accounts were established prior to May 11, 2018, then an institution would not necessarily have beneficial ownership information on file for that customer for some time, even if a safe deposit rental is autorenewing. If such a customer were to add a new account, the institution will be required to collect this information. It would appear that FinCEN and the banking regulators do not expect institutions to associate this information with all of the customer’s other accounts there, even if the legacy accounts do not implicate the rule directly, but it seems inconsistent with the CDD rule not to do so.

Revolving lines of credit are often extended past a stated maturity date on the same basic terms conditional upon the addition of a guarantor, or the pledge of additional security. Is this kind of renewal covered by FinCEN’s exception? Probably not. FinCEN describes loans that are subject to “automatic” renewal or extension, or where only modification is the extended maturity date, require no underwriting by the lender and no action on the part of the customer in order for that renewal, modification, or extension to occur.

FinCEN previously opined in its April 3, 2018, Frequently Asked Questions guidance that institutions could comply with the new rule’s beneficial ownership requirement as applied to such products by including language in account opening documents by which customers represent that they would notify the institution in the event of any change in beneficial ownership. This language is seemingly still of value for other purposes, but it would appear to be moot for purposes of rollover or renewal events, and we would expect FinCEN to amend Q12 of these FAQs in light of this newest determination.

As a reminder, ongoing risk-based CDD and sanctions screening obligations continue to apply, even if an account’s rollover or renewal qualifies for this exception. The addition of a new signer around this same time, for example, may warrant the collection of beneficial ownership information independent of whether or not the rollover or renewal is treated as a “new account.”

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